Copyright Act 1968/Part 3

Layout 2

Part III.—Copyright in Original Literary, Dramatic, Musical and Artistic Works.

Division 1.—Nature, Duration and Ownership of Copyright in Works.

Nature of copyright in original works. 31.—(1.) For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right—

(a) in the case of a literary, dramatic or musical work, to do all or any of the following acts:—

(i) to reproduce the work in a material form;

(ii) to publish the work;

(iii) to perform the work in public;

(iv) to broadcast the work;

(v) to cause the work to be transmitted to subscribers to a diffusion service;

(vi) to make an adaptation of the work;

(vii) to do, in relation to a work that is an adaptation of the first-mentioned work, any of the acts specified in relation to the first-mentioned work in sub-paragraphs (i) to (v), inclusive, of this paragraph; and

(b) in the case of an artistic work, to do all or any of the following acts:―

(i) to reproduce the work in a material form;

(ii) to publish the work;

(iii) to include the work in a television broadcast;

(iv) to cause a television programme that includes the work to be transmitted to subscribers to a diffusion service.

(2.) The generality of sub-paragraph (i) of paragraph (a) of the last preceding sub-section is not affected by sub-paragraph (vi) of that paragraph.

Original works in which copyright subsists. 32.—(1.) Subject to this Act, copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author—

(a) was a qualified person at the time when the work was made; or

(b) if the making of the work extended over a period—was a qualified person for a substantial part of that period.

(2.) Subject to this Act, where an original literary, dramatic, musical or artistic work has been published—

(a) copyright subsists in the work; or

(b) if copyright in the work subsisted immediately before its first publication—copyright continues to subsist in the work,

if, but only if—

(c) the first publication of the work took place in Australia;

(d) the author of the work was a qualified person at the time when the work was first published; or

(e) the author died before that time but was a qualified person immediately before his death.

(3.) Notwithstanding the last preceding sub-section but subject to the remaining provisions of this Act, copyright subsists in―

(a) an original artistic work that is a building situated in Australia; or

(b) an original artistic work that is attached to, or forms part of, such a building.

(4.) In this section, “qualified person” means an Australian citizen, an Australian protected person or a person resident in Australia.

Duration of copyright in original works. 33.—(1.) This section has effect subject to sub-section (2.) of the last preceding section and to the next succeeding section.

(2.) Subject to this section, where, by virtue of this Part, copyright subsists in a literary, dramatic or musical work, or in an artistic work other than a photograph, that copyright continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the author of the work died.

(3.) If, before the death of the author of a literary, dramatic or musical work—

(a) the work had not been published;

(b) the work had not been performed in public;

(c) the work had not been broadcast; and

(d) records of the work had not been offered or exposed for sale to the public,

the copyright in the work continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the work is first published, performed in public, or broadcast, or records of the work are first offered or exposed for sale to the public, whichever is the earliest of those events to happen.

(4.) A reference in the last preceding sub-section to the doing of an act in relation to a work shall be read as including a reference to the doing of that act in relation to an adaptation of the work.

(5.) If, before the death of the author of an engraving, the engraving had not been published, the copyright in the engraving continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the engraving is first published.

(6.) Copyright subsisting in a photograph by virtue of this Part continues to subsist until the expiration of fifty years after the expiration of the calendar year in which the photograph is first published.

Duration of copyright in anonymous and pseudonymous works. 34.—(1.) Subject to the next succeeding sub-section, where the first publication of a literary, dramatic or musical work, or of an artistic work other than a photograph, is anonymous or pseudonymous, the last preceding section does not apply in relation to the work but any copyright subsisting in the work by virtue of this Part continues to subsist until the expiration of the period of fifty years after the expiration of the calendar year in which the work was first published.

(2.) The last preceding sub-section does not apply in relation to a work if, at any time before the expiration of the period referred to in that sub-section, the identity of the author of the work is generally known or can be ascertained by reasonable inquiry.

Ownership of copyright in original works. 35.—(1.) This section has effect subject to Parts VII. and X.

(2.) Subject to this section, the author of a literary, dramatic, musical or artistic work is the owner of any copyright subsisting in the work by virtue of this Part.

(3.) The operation of any of the next three succeeding sub-sections in relation to copyright in a particular work may be excluded or modified by agreement.

(4.) Where a literary, dramatic or artistic work is made by the author in pursuance of the terms of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship and is so made for the purpose of publication in a newspaper, magazine or similar periodical, the proprietor is the owner of any copyright subsisting in the work by virtue of this Part in so far as the copyright relates to—

(a) publication of the work in any newspaper, magazine or similar periodical;

(b) broadcasting the work; or

(c) reproduction of the work for the purpose of its being so published or broadcast,

but not otherwise.

(5.) Subject to the last preceding sub-section, where—

(a) a person makes, for valuable consideration, an agreement with another person for the taking of a photograph, the painting or drawing of a portrait or the making of an engraving by the other person; and

(b) the work is made in pursuance of the agreement,

the first-mentioned person is the owner of any copyright subsisting in the work by virtue of this Part, but, if at the time the agreement was made that person made known, expressly or by implication, to the author of the work the purpose for which the work was required, the author is entitled to restrain the doing, otherwise than for that purpose, of any act comprised in the copyright in the work.

(6.) Where a literary, dramatic or artistic work to which neither of the last two preceding sub-sections applies, or a musical work, is made by the author in pursuance of the terms of his employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work by virtue of this Part.

Division 2.—Infringement of Copyright in Works.

Infringement by doing acts comprised in the copyright. 36.—(1.) Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.

(2.) The next three succeeding sections do not affect the generality of the last preceding sub-section.

Infringement by importation for sale or hire. 37. The copyright in a literary, dramatic, musical or artistic work is infringed by a person who, without the licence of the owner of the copyright, imports an article into Australia for the purpose of—

(a) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the article;

(b) distributing the article—

(i) for the purpose of trade; or

(ii) for any other purpose to an extent that will affect prejudicially the owner of the copyright; or

(c) by way of trade exhibiting the article in public,

where, to his knowledge, the making of the article would, if the article had been made in Australia by the importer, have constituted an infringement of the copyright.

Infringement by sale and other dealings. 38.—(1.) The copyright in a literary, dramatic, musical or artistic work is infringed by a person who, in Australia, and without the licence of the owner of the copyright―

(a) sells, lets for hire, or by way of trade offers or exposes for sale or hire, an article; or

(b) by way of trade exhibits an article in public,

where, to his knowledge, the making of the article constituted an infringement of the copyright or, in the case of an imported article, would, if the article had been made in Australia by the importer, have constituted such an infringement.

(2.) For the purposes of the last preceding sub-section, the distribution of any articles―

(a) for the purpose of trade; or

(b) for any other purpose to an extent that affects prejudicially the owner of the copyright concerned,

shall be taken to be the sale of those articles.

Infringement by permitting place of public entertainment to be used for performance of work. 39.―(1.) The copyright in a literary, dramatic or musical work is infringed by a person who permits a place of public entertainment to be used for the performance in public of the work, where the performance constitutes an infringement of the copyright in the work.

(2.) This section does not apply where the person permitting the place to be so used establishes—

(a) that he was not aware, and had no reasonable grounds for suspecting, that the performance would be an infringement of the copyright; or

(b) that he gave the permission gratuitously, or for a consideration that was only nominal or, if more than nominal, did not exceed a reasonable estimate of the expenses to be incurred by him by reason of the use of the place for the performance.

(3.) In this section, “place of public entertainment” includes any premises that are occupied principally for purposes other than public entertainment but are from time to time made available for hire for purposes of public entertainment.

Division 3.—Acts not Constituting Infringements of Copyright in Works.

Fair dealing for purpose of research or private study. 40. A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, for the purpose of research or private study does not constitute an infringement of the copyright in the work.

Fair dealing of criticism for purpose or review. 41. A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of criticism or review, whether of that work or of another work, and a sufficient acknowledgement of the work is made.

Fair dealing for purpose of reporting news. 42.—(1.) A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if—

(a) it is for the purpose of, or is associated with, the reporting of news in a newspaper, magazine or similar periodical and a sufficient acknowledgement of the work is made; or

(b) it is for the purpose of, or is associated with, the reporting of news by means of broadcasting or in a cinematograph film.

(2.) The playing of a musical work in the course of reporting news by means of broadcasting or in a cinematograph film is not a fair dealing with the work for the purposes of this section if the playing of the work does not form part of the news being reported.

(3.) This section applies where a literary, dramatic, musical or artistic work, or an adaptation of a literary, dramatic or musical work, is caused to be transmitted to subscribers to a diffusion service in like manner as it applies where such a work or adaptation is broadcast.

Reproduction for purposes of judicial proceeding. 43. The copyright in a literary, dramatic, musical or artistic work is not infringed by anything done for the purposes of a judicial proceeding. or of a report of a judicial proceeding.

Inclusion of works in collections for use by places of education. 44.—(1.) The copyright in a published literary, dramatic, musical or artistic work is not infringed by the inclusion of a short extract from the work, or, in the case of a published literary, dramatic or musical work,. from an adaptation of the work, in a collection of literary, dramatic, musical or artistic works contained in a book, sound recording or cinematograph film and intended for use by places of education if—

(a) the collection is described in an appropriate place in the book, on the label of each record embodying the recording or of its container, or in the film, as being intended for use by places of education;

(b) the work or adaptation was not published for the purpose of being used by places of education;

(c) the collection consists principally of matter in which copyright does not subsist; and

(d) a sufficient acknowledgement of the work or adaptation is made.

(2.) The last preceding sub-section does not apply in relation to the copyright in a work if, in addition to the extract concerned, two or more other extracts from, or from adaptations of, works (being works in which copyright subsists at the time when the collection is published) by the author of the first-mentioned work are contained in that collection, or are contained in that collection taken together with every similar collection, if any, of works intended for use by places of education and published by the same publisher within the period of five years immediately preceding the publication of the first-mentioned collection.

Division 4.—Acts not Constituting Infringements of Copyright in Literary, Dramatic and Musical Works.

Reading or recitation in public or for a broadcast. 45. The reading or recitation in public, or the inclusion in a sound broadcast or television broadcast of a reading or recitation, of an extract of reasonable length from a published literary or dramatic work, or from an adaptation of such a work, does not constitute an infringement of the copyright in the work if a sufficient acknowledgement of the work is made.

Performance at premises where persons reside or sleep. 46. Where a literary, dramatic or musical work, or an adaptation of such a work, is performed in public, by the operation of wireless telegraphy apparatus or by the use of a record, at premises where persons reside or sleep, as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests, the performance does not constitute an infringement of the copyright in the work.

Reproduction for purpose of broadcasting. 47.—(1.) Where the broadcasting by a person of a literary, dramatic or musical work, or of an adaptation of such a work, would not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copyright in the work, but the making by the person of a sound recording or a cinematograph film of the work or adaptation would, apart from this sub-section, constitute such an infringement, the copyright in the work is not infringed by his making such a recording or film solely for the purpose of the broadcasting of the work or adaptation.

(2.) The last preceding sub-section does not apply in relation to a recording or film if a record embodying the recording or a copy of the film is used for a purpose other than―

(a) the broadcasting of the work or adaptation in circumstances that do not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copyright in the work; or

(b) the making of further records embodying the recording or further copies of the film for the purpose of the broadcasting of the work or adaptation in such circumstances.

(3.) Sub-section (1.) of this section does not apply in relation to a recording or film where a record embodying the recording or a copy of the film is used for the purpose of the broadcasting of the work or adaptation by a person who is not the maker of the recording or film unless the maker has paid to the owner of the copyright in the work such amount as they agree or, in default of agreement, has given an undertaking in writing to the owner to pay to him such amount as is determined by the Copyright Tribunal, on the application of either of them, to be equitable remuneration to the owner for the making of the recording or film.

(4.) A person who has given an undertaking referred to in the last preceding sub-section is liable, when the Copyright Tribunal has determined the amount to which the undertaking relates, to pay that amount to the owner of the copyright in the work and the owner may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner.

(5.) Sub-section (1.) of this section does not apply in relation to a recording or film unless, before the expiration of the period of twelve months commencing on the day on which any of the records embodying the recording or any of the copies of the film is first used for broadcasting the work or adaptation in accordance with that sub-section, or before the expiration of such further period, if any, as is agreed between the maker of the recording or film and the owner of the copyright in the work, all the records embodying the recording or all the copies of the film are destroyed or are delivered, with the consent of the National Librarian, to the National Library.

Division 5.—Copying of Works in Libraries.

Interpretation. 48. In this Division—

(a) a reference to an article contained in a periodical publication is a reference to anything (other than an artistic work) appearing in such a publication; and

(b) a reference to a librarian of a library includes a reference to a person in charge of a library.

Copying by libraries for students and members of Parliament. 49.—(1.) Subject to this section, the copyright in an article contained in a periodical publication is not infringed by the making of a copy of the article or of part of the article by or on behalf of the librarian of a library that is not established or conducted for profit.

(2.) Subject to this section, the copyright in a published literary, dramatic or musical work other than an article contained in a periodical publication is not infringed by the making of a copy of part of the work by or on behalf of the librarian of a library that is not established or conducted for profit.

(3.) The last two preceding sub-sections do not apply in relation to a copy of an article, or of part of an article, contained in a periodical publication or a copy of part of any other published literary, dramatic: or musical work, as the case may be, unless―

(a) the copy is supplied only to a person who satisfies the librarian, or a person acting on behalf of the librarian, that he requires the copy for the purpose of research or private study and that he will not use it for any other purpose or, if the person is a member of a Parliament and the librarian is the librarian of a library the principal purpose of which is to provide library services for members of that Parliament, that he requires the copy for the purpose of the performance of his duties as such a member and that he will not use it for any other purpose;

(b) the person to whom the copy is supplied has not previously been supplied by the librarian, or by a person acting on behalf of the librarian, with a copy of the same article or part of an article or of the same part of a work; and

(c) where the copy is supplied to a person other than a member of a Parliament the person is required to pay for the copy an amount not less than the cost of making the copy.

(4.) Sub-section (1.) of this section does not apply in relation to a copy of, or of parts of, two or more articles contained in the same periodical publication unless the articles relate to the same subject-matter.

(5.) Sub-section (2.) of this section does not apply in relation to a copy of part of a published literary, dramatic or musical work unless the copy contains only a reasonable portion of the work.

(6.) The regulations may exclude the application of sub-section (1.) or sub-section (2.) of this section in such cases as are specified in the regulations.

Copying by libraries for other libraries. 50.—(1.) Subject to this section, the copyright in an article contained in a periodical publication or in any other published literary, dramatic or musical work is not infringed by the making of a copy of the article or other work, or of part of the article or other work, by or on behalf of the librarian of a library.

(2.) The last preceding sub-section does not apply in relation to a copy of an article or other work or of part of an article or other work unless―

(a) the copy is supplied only to the librarian of another library; and

(b) where the work is not an article contained in a periodical publication and the copy is a copy of the whole of the work or of a part of the work that is more than a reasonable portion of the work—at the time when the copy is made, the librarian by whom or on whose behalf it is made does not know the name and address of any person entitled to authorize the making of the copy and could not by reasonable inquiry ascertain the name and address of such a person.

(3.) The regulations may exclude the application of sub-section (1.) of this section—

(a) where the copy is supplied by the librarian of the other library to a person otherwise than in accordance with the regulations; and

(b) in such other cases as are specified in the regulations.

Copying of unpublished works in libraries. 51.—(1.) Where, at a time more than fifty years after the expiration of the calendar year in which the author of a literary, dramatic or musical work, or of an artistic work being a photograph or engraving, died, and more than seventy-five years after the time at which, or the expiration of the period during which, the work was made, copyright subsists in the work but—

(a) the work has not been published; and

(b) a copy of the work, or, in the case of a literary, dramatic or musical work, the manuscript of the work, is kept in a library or other place where it is, subject to any regulations governing that library or other place, open to public inspection,

the copyright in the work is not infringed—

(c) by the making of a copy of the work by a person for the purpose of research or private study or with a view to publication; or

(d) by the making of a copy of the work by, or on behalf of, the person in charge of that library or other place if the copy is supplied to a person who satisfies the person in charge that he requires the copy for the purpose of research or private study or with a view to publication and that he will not use it for any other purpose.

(2.) Where a manuscript, or a copy, of a thesis or other similar literary work that has not been published is kept in a library of a university or other similar institution, the copyright in the thesis or other work is not infringed by the making of a copy of the thesis or other work by or on behalf of the librarian of the library if the copy is supplied to a person who satisfies the librarian, or a person acting on behalf of the librarian, that he requires the copy for the purpose of research or private study and that he will not use it for any other purpose.

Publication of unpublished works kept in libraries. 52.—(1.) Where—

(a) a published literary, dramatic or musical work (in this section referred to as “the new work”) incorporates the whole or a part of a work (in this section referred to as “the old work”) to which sub-section (1.) of the last preceding section applied immediately before the new work was published;

(b) before the new work was published, the prescribed notice of the intended publication of the work had been given; and

(c) immediately before the new work was published, the identity of the owner of the copyright in the old work was not known to the publisher of the new work,

then, for the purposes of this Act, the first publication of the new work, and any subsequent publication of the new work whether in the same or in an altered form, shall, in so far as it constitutes a publication of the old work, be deemed not to be an infringement of the copyright in the old work. or an unauthorized publication of the old work.

(2.) The last preceding sub-section does not apply to a subsequent publication of the new work incorporating a part of the old work that was. not included in the first publication of the new work unless—

(a) sub-section (1.) of the last preceding section would, but for this section, have applied to that part of the old work immediately before that subsequent publication;

(b) before that subsequent publication, the prescribed notice of the intended publication had been given; and

(c) immediately before that subsequent publication, the identity of the owner of the copyright in the old work was not known to the publisher of that subsequent publication.

(3.) Where a work, or a part of a work, has been published and, by virtue of this section, the publication is to be deemed not to be an infringement of the copyright in the work, the copyright in the work is not infringed by a person who, after that publication took place, broadcasts, causes to be transmitted to subscribers to a diffusion service, performs in public, or makes a record of, the work or that part of the work, as the case may be.

Application of Division to illustrations accompanying articles and other works. 53. Where an article, thesis or other literary, dramatic or musical work is accompanied by artistic works provided for the purpose of explaining or illustrating the article, thesis or other work (in this section referred to as “the illustrations”), the preceding sections of this Division apply as if—

(a) where any of those sections provides that the copyright in the article, thesis or work is not infringed-the reference to that copyright included a reference to any copyright in the illustrations;

(b) a reference in section 49, section 50 or section 51 to a copy of the article, thesis or work included a reference to a copy of the article, thesis or work together with a copy of the illustrations;

(c) a reference in section 49 or section 50 to a copy of a part of the article or work included a reference to a copy of that part of the article or work together with a copy of the illustrations that were provided for the purpose of explaining or illustrating that part; and

(d) a reference in section 52 to the doing of any act in relation to the work included a reference to the doing of that act in relation to the work together with the illustrations.

Division 6.—Recording of Musical Works.

Interpretation. 54.—(1.) For the purposes of this Division—

(a) a reference to a musical work shall be read as a reference to the work in its original form or to an adaptation of the work;

(b) a reference to the owner of the copyright in a literary, dramatic or musical work shall, unless the contrary intention appears, be read as a reference to the person who is entitled to authorize the making in, and the importation into, Australia of records of the work; and

(c) a reference to sale of a record by retail or to retail sale of a record shall be read as not including a reference to—

(i) sale for a consideration not consisting wholly of money; or

(ii) sale by a person not ordinarily carrying on the business of making or selling records.

(2.) For the purposes of this Division, where a musical work is comprised partly in one record and partly in another record or other records, all the records shall be treated as if they constituted a single record.

(3.) A reference in this Division to a record of a musical work does not include a reference to a sound-track associated with visual images forming part of a cinematograph film.

Conditions upon which manufacturer may make records of musical work. 55.—(1.) Subject to this Division, the copyright in a musical work is not infringed by a person (in this section referred to as “the manufacturer”) who makes, in Australia, a record of the work if—

(a) a record of the work—

(i) has previously been made in, or imported into, Australia for the purpose of retail sale and was so made or imported by, or with the licence of, the owner of the copyright in the work;

(ii) has previously been made in Australia for use in making other records for the purpose of retail sale and was so made by, or with the licence of, the owner of the copyright in the work;

(iii) has previously been made in, or imported into, a country other than Australia for the purpose of retail sale, being a country that, at the time of the previous making or importation, was specified in the regulations to be a country in relation to which this Division applies, and was so made or imported by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the work; or

(iv) has previously been made in a country other than Australia for use in making other records for the purpose of retail sale, being a country that, at the time of the previous making, was specified in the regulations to be a country in relation to which this Division applies, and was so made by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the work;

(b) before the making of the record, the prescribed notice of the intended making of the record was given to the owner of the copyright;

(c) the manufacturer intends to sell the record by retail, or to supply it for the purpose of its being sold by retail by a person other than the manufacturer, or intends to use it for making other records that are to be so sold or supplied; and

(d) where the record is so sold or supplied by the manufacturer—

(i) the sale or supply is made with the licence of the owner of the copyright; and

(ii) there is paid to the owner of the copyright, as prescribed by the regulations, a royalty ascertained in accordance with the succeeding sections of this Division.

(2.) The last preceding sub-section does not apply in relation to a record of an adaptation of a musical work if the adaptation debases the work.

(3.) Sub-paragraph (i) of paragraph (d) of sub-section (1.) of this section does not apply in relation to a record of a work (other than a work that was made for the purpose of being performed, or has been performed, in association with a dramatic work or has been included in a cinematograph film) if the sale or supply is made after the expiration of the prescribed period after the earliest of the following dates:—

(a) the date of the first making in, or the date of the first importation into, Australia of a previous record of the work in circumstances referred to in sub-paragraph (i) or sub-paragraph (ii) of paragraph (a) of sub-section (1.) of this section;

(b) the date of the first supplying (whether by sale or otherwise) to the public in a country referred to in sub-paragraph (iii) or sub-paragraph (iv) of paragraph (a) of sub-section (1.) of this section of a previous record of the work made in, or imported into, that country in circumstances referred to in that sub-paragraph.

(4.) Regulations prescribing a period for the purposes of the last preceding sub-section may prescribe different periods in relation to different classes of records.

(5.) Without limiting the generality of paragraph (d) of sub-section (1.) of this section, regulations made for the purposes of that paragraph may provide―

(a) that payment of the royalties in respect of records, or of an amount, ascertained in accordance with the regulations, in respect of the royalties in respect of records, is, or is in such classes of cases as are specified in the regulations, to be made before the records are sold or supplied by the manufacturer; and

(b) that the doing of such acts as are specified in the regulations, being such acts as the Governor-General considers convenient for ensuring the receipt by the owner of the copyright of the royalties in respect of records or, if the owner of the copyright cannot be found by reasonable inquiry, as the Governor-General considers reasonable in the circumstances, is to be deemed to constitute payment of the royalties.

Amount of royalty. 56.—(1.) Subject to this Division, the royalty payable in respect of a record is five per centum of the retail selling price of the record.

(2.) For the purposes of the last preceding sub-section—

(a) if the selling price to the public of the record is marked by the maker of the record on the label of the record-the retail selling price of the record shall be taken to be that price;

(b) if the selling price to the public of the record is not so marked but is specified in the appropriate price list issued by the maker of the record the retail selling price of the record shall be taken to be the price so specified; or

(c) if the selling price to the public of the record is not so marked or specified but other records embodying the same sound recording as, and bearing an identical label to, the record have been sold to the public-the retail selling price of the record shall be taken to be the highest price at which those other records are ordinarily sold to the public in the capital city of a State.

(3.) A reference in the last preceding sub-section to the label of a record shall be read as including a reference to the label on the container of the record.

(4.) If the royalty payable in respect of a record under this section. includes a fraction of a cent that is less than or more than one-half of a cent—

(a) where that fraction is less than one-half of a cent—that fraction shall be treated as one-half of a cent; and

(b) where that fraction is more than one-half of a cent—that fraction shall be treated as a whole cent.

(5.) If, apart from this sub-section, the royalty payable in respect of a record under this section would be less than One cent, that royalty is One cent.

Provisions relating to royalty where two or more works are on the one record. 57. Where a record comprises two or more musical works, whether or not there is any other matter comprised in the record—

(a) if the record includes a work in which copyright does not subsist or works in which copyrights do not subsist-the royalty payable in respect of the record is, subject to the next succeeding paragraph, the amount that bears to the amount that, but for this section, would be the amount of the royalty the same proportion as the number of works in the record in which copyrights subsist bears to the total number of works in the record; and

(b) if the record includes two or more works in which copyrights subsist—

(i) subject to this Division, the royalty payable in respect of the record shall not be less than One cent in respect of each work in the record in which copyright subsists; and

(ii) if the owners of the copyrights in the works in the record in which copyrights subsist are different persons-there shall be paid to the owner of the copyright in each work, in respect of that work, an amount ascertained by dividing the amount of the royalty payable in respect of the record by the number of works in the record in which copyrights subsist.

Revision of royalty and minimum royalty. 58.—(1.) If at any time after the expiration of one year after the commencement of this Act it appears to the Attorney-General that the royalty, or the minimum royalty, payable in respect of records generally or in respect of records included in a particular class of records is not equitable, he may request the Copyright Tribunal to hold an inquiry into the matter and report the result of its inquiry to the Attorney-General.

(2.) At any time after the Tribunal has made a report in relation to the royalty, or the minimum royalty, payable in respect of records generally or in respect of records included in a particular class of records, the regulations may provide that the relevant provision of this Act, in its application in respect of records generally or in respect of records included in that class of records, as the case may be, shall have effect as if it were subject to such variations as are provided by the regulations, being such variations as the Governor-General thinks equitable.

(3.) Before making regulations for the purposes of the last preceding sub-section, the Governor-General shall take into account the report of the Tribunal.

(4.) Where the Tribunal has made a report in relation to the royalty, or the minimum royalty, payable in respect of records included in a particular class of records (whether the report related only to records included in that class or also related to other records), the Attorney-General shall not, before the expiration of five years after the report was made, request the Tribunal to hold an inquiry under this section in relation to the royalty, or the minimum royalty, as the case may be, payable in respect of records included in that class.

(5.) In this section, “the relevant provision of this Act” means—

(a) in relation to the royalty payable in respect of any records—sub-section (1.) of section 56 of this Act or, if that sub-section is affected by regulations made for the purposes of this section, that sub-section as so affected; and

(b) in relation to the minimum royalty payable in respect of any records—sub-section (5.) of section 56, and sub-paragraph (i) of paragraph (b) of section 57, of this Act or, if those provisions are affected by regulations made for the purposes of this section, those provisions as so affected.

Conditions upon which may include part of a literary or dramatic work in a record of a musical work. 59.—(1.) Where—

(a) a person makes in Australia a record comprising the performance manufacturer of a musical work in which words are sung, or are spoken incidentally to or in association with the music, whether or not there is any other matter comprised in the record;

(b) copyright does not subsist in that work or, if copyright so subsists, the requirements specified in sub-section (1.) of section 55 of this Act are complied with in relation to that copyright;

(c) the words consist or form part of a literary or dramatic work in which copyright subsists;

(d) a record of the musical work in which those words, or words substantially the same as those words, were sung, or were spoken incidentally to or in association with the music—

(i) has previously been made in, or imported into, Australia for the purpose of retail sale and was so made or imported by, or with the licence of, the owner of the copyright in the literary or dramatic work;

(ii) has previously been made in Australia for use in making other records for the purpose of retail sale and was so made by, or with the licence of, the owner of the copyright in the literary or dramatic work;

(iii) has previously been made in, or imported into, a country other than Australia for the purpose of retail sale, being a country that, at the time of the previous making or importation, was specified in the regulations to be a country in relation to which this Division applies, and was so made or imported by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the literary or dramatic work; or

(iv) has previously been made in a country other than Australia for use in making other records for the purpose of retail sale, being a country that, at the time of the previous making, was specified in the regulations to be a country in relation to which this Division applies, and was so made by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the literary or dramatic work; and

(e) the like notice was given to the owner of the copyright in the literary or dramatic work as is required by paragraph (b) of sub-section (1.) of section 55 of this Act to be given to the owner of the copyright (if any) in the musical work and there is paid to the owner of the copyright in the literary or dramatic work such amount (if any) as is ascertained in accordance with this section,

the making of the record does not constitute an infringement of the copyright in the literary or dramatic work.

(2.) Where copyright does not subsist in the musical work, the amount to be paid in respect of the literary or dramatic work is an amount equal to the royalty that, but for this section, would have been payable in respect of the musical work if copyright had subsisted in the musical work.

(3.) Where copyright subsists in the musical work as well as in the literary or dramatic work—

(a) if the copyrights in those works are owned by the same person—an amount is not payable in respect of the literary or dramatic work; or

(b) if the copyrights in those works are owned by different persons—the royalty that, but for this section, would have been payable in respect of the musical work shall be apportioned between them in such manner as they agree, or, in default of agreement, as is determined by the Copyright Tribunal on the application of either of them.

(4.) Where the owner of the copyright in a musical work and the owner of the copyright in a literary or dramatic work do not agree on the manner in which an amount is to be apportioned between them but the person who made the record gives an undertaking in writing to each owner to pay to him the portion of that amount that the Tribunal determines to be payable to him, then—

(a) paragraph (d) of sub-section (1.) of section 55 of this Act and paragraph (e) of sub-section (1.) of this section have effect as if the payments referred to in those paragraphs had been made; and

(b) the person who made the record is liable, when the amount to which an undertaking relates is determined, to pay that amount to the owner of the copyright to whom the undertaking was given and the owner may recover that amount in a court of competent jurisdiction from that person as a debt due to the owner.

(5.) Regulations made for the purposes of paragraph (d) of sub-section (1.) of section 55 of this Act in relation to payments to the owner of the copyright in a musical work have the like effect, with any necessary modifications, for the purposes of paragraph (e) of sub-section (1.) of this section in relation to payments to the owner of the copyright in a literary or dramatic work.

Records made partly for retail sale and partly for gratuitous disposal. 60. Where a person makes, in Australia, a number of records embodying the same sound recording, being a recording of a musical work or of a musical work and of words consisting or forming part of a literary or dramatic work, with the intention of—

(a) selling by retail, or supplying for sale by retail by another person, a substantial proportion of the records (in this section referred to as “the records made for retail sale”); and

(b) disposing gratuitously of the remainder of the records or supplying the remainder of the records for gratuitous disposal by another person,

this Division applies in relation to the records other than the records made for retail sale as if—

(c) those records had been made with the intention of selling them by retail or of supplying them for sale by retail by another person;

(d) the gratuitous disposal of those records by the maker of the records, or the supplying of those records by the maker of the records for gratuitous disposal by another person, were a sale of the records by retail; and

(e) the retail selling price of those records were the same as the retail selling price of the records made for retail sale.

Making inquiries in relation to previous records. 61. Where—

(a) a person makes inquiries, as prescribed, for the purpose of ascertaining whether a record of a musical work, or a record of a musical work in which words consisting or forming part of a literary or dramatic work were sung or spoken, has previously been made in, or imported into, Australia by, or with the licence of, the owner of the copyright in the musical work or in the literary or dramatic work, as the case may be, for the purpose of retail sale or for use in making other records for the purpose of retail sale; and

(b) an answer to those inquiries is not received within the prescribed period,

a record of that musical work, or a record of that work in which those words were sung or spoken, as the case may be, shall, for the purposes of the application of this Division—

(c) in relation to the person who made the inquiries; or

(d) in relation to a person who makes records of the musical work, or records of that work in which those words or substantially the same words are sung or spoken, for the purpose of supplying those records to the person who made the inquiries in pursuance of an agreement entered into between those persons for the making of the records,

be taken to have been previously made in, or imported into, Australia with the licence of the owner of that copyright for the purpose of retail sale or for use in making other records for the purpose of retail sale, as the case may be.

Application of Division in relation to record of part of a work. 62.—(1.) Subject to the next succeeding sub-section, the preceding sections of this Division apply in relation to a record of a part of a musical work in like manner as they apply in relation to a record of the whole of the work.

(2.) Sub-section (1.) of section 55 of this Act—

(a) does not apply in relation to a record of the whole of a work unless the previous record referred to in paragraph (a) of that sub-section was a record of the whole of the work; and

(b) does not apply in relation to a record of a part of a work unless that previous record was a record of, or comprising, that part of the work.

Application of Division in relation to musical works published before 1 July 1912. 63.—(1.) Subject to this section, the preceding sections of this Division apply in relation to musical works published before the first day of July, One thousand nine hundred and twelve, as if paragraph (a) and sub-paragraph (i) of paragraph (d) of sub-section (1.), and sub-sections (3.) and (4.), of section 55, paragraph (d) of sub-section (1.) of section 59, section 61 and sub-section (2.) of section 62 of this Act were omitted.

(2.) This section does not extend the operation of section 59 of this Act to a record in respect of which a requirement specified in paragraph (d) of sub-section (1.) of that section has not been complied with unless the words comprised in the record, as well as the musical work, were published before the first day of July, One thousand nine hundred and twelve, and were so published as words to be sung to, or spoken incidentally to or in association with, the music.

(3.) This section ceases to have effect at the expiration of two years after the commencement of this Act.

Sections 55 and 59 to be disregarded in determining whether an infringement has been committed by of records. 64. For the purpose of any provision of this Act relating to imported articles, in determining whether the making of a record made outside Australia would have constituted an infringement of copyright if the record had been made in Australia by the importer, sections 55 and 59 the importation of this Act shall be disregarded.

Division 7.—Acts not Constituting Infringements of Copyright in Artistic Works.

Sculptures and certain other works in public places. 65.—(1.) This section applies to sculptures and to works of artistic craftsmanship of the kind referred to in paragraph (c) of the definition of “artistic work” in section 10 of this Act.

(2.) The copyright in a work to which this section applies that is situated, otherwise than temporarily, in a public place, or in premises open to the public, is not infringed by the making of a painting, drawing, engraving or photograph of the work or by the inclusion of the work in a cinematograph film or in a television broadcast.

Buildings and models of buildings. 66. The copyright in a building or a model of a building is not infringed by the making of a painting, drawing, engraving or photograph of the building or model or by the inclusion of the building or model in a cinematograph film or in a television broadcast.

Incidental filming or televising of artistic works. 67. Without prejudice to the last two preceding sections, the copyright in an artistic work is not infringed by the inclusion of the work in a cinematograph film or in a television broadcast if its inclusion in the film or broadcast is only incidental to the principal matters represented in the film or broadcast.

Publication of artistic works. 68. The copyright in an artistic work is not infringed by the publication of a painting, drawing, engraving, photograph or cinematograph film if, by virtue of section 65, section 66 or section 67 of this Act, the making of that painting, drawing, engraving, photograph or film did not constitute an infringement of the copyright.

Artistic works transmitted to subscribers to a diffusion service. 69. Sections 65, 66 and 67 of this Act apply in relation to a television programme that is caused to be transmitted to subscribers to a diffusion service in like manner as they apply in relation to a television broadcast.

Reproduction including work broadcast, for purpose of in television broadcast. 70.—(1.) Where the inclusion of an artistic work in a television broadcast made by a person would not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of copyright in the work but the making by the person of a cinematograph film of the work would, apart from this sub-section, constitute such an infringement, the copyright in the work is not infringed by his making such a film solely for the purpose of the inclusion of the work in a television broadcast.

(2.) The last preceding sub-section does not apply in relation to a film if a copy of the film is used for a purpose other than—

(a) the inclusion of the work in a television broadcast in circumstances that do not (whether by reason of an assignment or licence or of the operation of a provision of this Act) constitute an infringement of the copyright in the work; or

(b) the making of further copies of the film for the purpose of the inclusion of the work in such a broadcast.

(3.) Sub-section (1.) of this section does not apply in relation to a film where a copy of the film is used for the purpose of the inclusion of the work in a television broadcast made by a person who is not the maker of the film unless the maker has paid to the owner of the copyright in the work such amount as they agree or, in default of agreement, has given an undertaking in writing to the owner to pay to him such amount as is determined by the Copyright Tribunal, on the application of either of them, to be equitable remuneration to the owner for the making of the film.

(4.) A person who has given an undertaking referred to in the last preceding sub-section is liable, when the Copyright Tribunal has determined the amount to which the undertaking relates, to pay that amount to the owner of the copyright in the work and the owner may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner.

(5.) Sub-section (1.) of this section does not apply in relation to a film unless, before the expiration of the period of twelve months commencing on the day on which any of the copies of the film is first used for including the work in a television broadcast in accordance with that sub-section, or before the expiration of such further period, if any, as is agreed between the maker of the film and the owner of the copyright in the work, all the copies of the film are destroyed or are delivered, with the consent of the National Librarian, to the National Library.

Reproduction of work in different dimensions. 71. For the purposes of this Act—

(a) the making of an object of any kind that is in three dimensions does not infringe the copyright in an artistic work that is in two dimensions; and

(b) the making of an object of any kind that is in two dimensions does not infringe the copyright in an artistic work that is in three dimensions,

if the object would not appear to persons who are not experts in relation to objects of that kind to be a reproduction of the artistic work.

Reproduction of part of work in later work. 72.—(1.) The copyright in an artistic work is not infringed by the making of a later artistic work by the same author if, in making the later work, the author does not repeat or imitate the main design of the earlier work.

(2.) The last preceding sub-section has effect notwithstanding that part of the earlier work is reproduced in the later work and that, in reproducing the later work, the author used a mould, cast, sketch, plan, model or study made for the purposes of the earlier work.

Reconstruction of buildings. 73.—(1.) Where copyright subsists in a building, the copyright is not infringed by a reconstruction of that building.

(2.) Where a building has been constructed in accordance with architectural drawings or plans in which copyright subsists and has been so constructed by, or with the licence of, the owner of that copyright, that copyright is not infringed by a later reconstruction of the building by reference to those drawings or plans.

Division 8.—Industrial Designs.

Interpretation. 74.—(1.) In this Division, “corresponding design”, in relation to an artistic work, means a design that, when applied to an article, results in a reproduction of that work.

(2.) In this Division—

(a) a reference to the scope of the copyright in a registered design is a reference to the aggregate of the things that, by virtue of the Designs Act 1906–1968, the person registered as the owner of the design has the exclusive right to do;

(b) a reference to the scope of the copyright in a registered design as extended to all associated designs and articles is a reference to the aggregate of the things that, by virtue of that Act, the person registered as the owner of the design would have had the exclusive right to do if—

(i) when that design was registered, there had at the same time been registered every other possible design consisting of that design with modifications or variations not sufficient to alter the nature, or substantially to affect the identity, of that design and the person registered as the owner of that design had been registered as the owner of every such other possible design; and

(ii) that design, and every such other possible design, had each been registered in respect of all the articles to which it was capable of being applied; and

(c) a reference to the doing of an act in Australia does not include a reference to the doing of the act in a Territory of the Commonwealth to which the Designs Act 1906–1968 does not apply or has not been extended.

Copyright not infringed by doing things that are within the scope of registered design. 75. Subject to the next succeeding section, where copyright subsists in an artistic work and a corresponding design is registered under the Designs Act 1906–1968, it is not an infringement of the copyright in the work—

(a) to do anything, while the copyright in the registered design subsists under the Designs Act 1906–1968, that is within the scope of the copyright in the design; or

(b) to do anything, after the copyright in the registered design has expired, that, if it had been done while the copyright in the design subsisted, would have been within the scope of that copyright as extended to all associated designs and articles.

False registration of industrial designs. 76.—(1.) This section has effect where—

(a) copyright subsists in an artistic work and proceedings are brought under this Act in relation to that work;

(b) a corresponding design has been registered under the Designs Act 1906–1968 and the copyright in the design that subsisted by virtue of that registration had not expired by effluxion of time before the commencement of those proceedings; and

(c) it is established in those proceedings that the person registered as the owner of the design was not the owner of the design for the purposes of the Designs Act 1906-1968 and was so registered without the knowledge of the owner of the copyright in the artistic work.

(2.) Subject to the next succeeding sub-section, for the purposes of the proceedings referred to in the last preceding sub-section―

(a) the design shall be deemed never to have been registered under the Designs Act 1906–1968;

(b) the last preceding section does not apply in relation to anything done in respect of the design; and

(c) nothing in the Designs Act 1906–1968 constitutes a defence.

(3.) Notwithstanding anything in the last preceding sub-section, if in the proceedings it is established that an act to which the proceedings relate―

(a) was done by an assignee of, or under a licence granted by, the person registered as the owner of the design; and

(b) was so done in good faith in reliance upon the registration and without notice of any proceedings for the cancellation of the registration or for rectifying the entry in the Register of Designs in relation to the design,

the last preceding section applies in relation to that act for the purposes of the first-mentioned proceedings.

Application of artistic works as industrial designs without registration of the designs. 77.—(1.) Where—

(a) copyright subsists in an artistic work;

(b) a corresponding design is applied industrially by, or with the licence of, the owner of the copyright in the work;

(c) articles to which the corresponding design has been so applied (in this section referred to as “articles made to the corresponding design”) are sold, let for hire or offered or exposed for sale or hire in Australia; and

(d) at the time when those articles are so sold, let for hire or offered or exposed for sale or hire, they are not articles in respect of which the corresponding design has been registered under the Designs Act 1906–1968,

the succeeding sub-sections of this section have effect.

(2.) During the period of fifteen years commencing on the date on which articles made to the corresponding design were first sold, let for hire or offered or exposed for sale or hire in the circumstances referred to in paragraph (d) of the last preceding sub-section, it is not an infringement of the copyright in the work to do anything that, at the time when it is done, would have been within the scope of the copyright in the corresponding design if the corresponding design had, immediately before that time, been registered in respect of all articles made to the corresponding design that had, before that time, been sold, let for hire or offered or exposed for sale or hire in those circumstances.

(3.) After the expiration of the period referred to in the last preceding sub-section, it is not an infringement of the copyright in the work to do anything that, at the time when it is done, would, if the corresponding design had been registered immediately before that time, have been within the scope of the copyright in that design as extended to all associated designs and articles.

(4.) For the purposes of this section, account shall not be taken of any articles in respect of which, at the time when they were sold, let for hire or offered or exposed for sale or hire, the corresponding design concerned was excluded from registration under the Designs Act 1906–1968 by regulations made under that Act for the purpose of excluding from registration designs for articles that are primarily literary or artistic in character and, for the purposes of any proceedings under this Act, a design shall be conclusively presumed to have been so excluded if—

(a) before the commencement of those proceedings, an application for the registration of the design under that Act in respect of those articles had been refused;

(b) the reason or one of the reasons given for the refusal was that the design was excluded from registration under that Act by regulations made under that Act for the purpose of excluding from registration designs for articles that are primarily literary or artistic in character; and

(c) no appeal against the refusal had been allowed before the date of commencement of the proceedings or was pending on that date.

(5.) The regulations may make provision for determining the circumstances in which a design is, for the purposes of this section, to be deemed to be applied industrially.

Division 9.—Works of Joint Authorship.

References to all of joint authors. 78. Subject to this Division, a reference in this Act to the author of a work shall, unless otherwise expressly provided by this Act, be read, in relation to a work of joint authorship, as a reference to all the authors of the work.

References to any one or more of joint author. 79. The references in section 32, and in sub-section (2.) of section 34, of this Act to the author of a work shall, in relation to a work of joint authorship, be read as references to any one or more of the authors of the work.

References to whichever of joint authors died last. 80. The references in sections 33 and 51 of this Act to the author of a work shall, in relation to a work of joint authorship other than a work to which the next succeeding section applies, be read as references to the author who died last.

Works of joint authorship published under pseudonyms. 81.—(1.) This section applies to a work of joint authorship that was first published under two or more names of which one was a pseudonym or two or more (but not all) were pseudonyms.

(2.) This section also applies to a work of joint authorship that was first published under two or more names all of which were pseudonyms if, at any time within fifty years after the expiration of the calendar year in which the work was first published, the identity of one or more (but not all) of the authors was generally known or could be ascertained by reasonable inquiry.

(3.) The references in sections 33 and 51 of this Act to the author of a work shall, in relation to a work to which this section applies, be read as references to the author whose identity was disclosed or, if the identity of two or more of the authors was disclosed, as references to whichever of those authors died last.

(4.) For the purposes of this section, the identity of an author shall be deemed to have been disclosed if—

(a) one of the names under which the work was published was the name of that author; or

(b) the identity of that author is generally known or can be ascertained by reasonable inquiry.

Copyright to subsist in joint works without regard to any author who is an unqualified person. 82.—(1.) Sub-section (2.) of section 35 of this Act has effect, in relation to a work of joint authorship of which one of the authors is an unqualified person, or two or more (but not all) of the authors are unqualified persons, as if the author or authors, other than unqualified persons, had alone been the author or authors, as the case may be, of the work.

(2.) For the purposes of the last preceding sub-section, a person is an unqualified person in relation to a work where, if he had alone been the author of the work, copyright would not have subsisted in the work by virtue of this Part.

Inclusion of joint works in collections for use in places of education. 83. The reference in sub-section (2.) of section 44 of this Act to other extracts from, or from adaptations of, works by the author of the extract concerned―

(a) shall be read as including a reference to extracts from, or from adaptations of, works by the author of the extract concerned in collaboration with any other person; or

(b) if the extract concerned is from, or from an adaptation of, a work of joint authorship―shall be read as including a reference to extracts from, or from adaptations of, works by any one or more of the authors of the extract concerned, or by any one or more of those authors in collaboration with any other person.